People ex rel. M'Donald v. Hickox — 3 Hill & Den. 446

Majority

p. 446

The People ex rel. M’Donald vs. Hickox.

Headnote

Where proceedings for forcible entry and detainer are removed into this court pursuant to 2 R. S. 510, § 19, and the issue therein is ordered to be tried at the circuit, judgment as in case of nonsuit will be granted, as in other actions, if the relator do not proceed to trial.

Forcible entry and detainer. After traversing the inquisition, the procedings were removed into this court by certiorari, and an order was made that the issue be tried in the county of Delaware. After one default the relator stipulated to try at the next circuit, and for not trying pursuant to stipulation,

S. C. Johnson, for the defendant,

now moved for judgment as in case of nonsuit.

R. J. Hilton,

for the relator, said, this was a criminal proceeding on behalf of the people, and so the motion could not be granted.

Although in form criminal, this is in substance a civil proceeding to recover the possession of land. The relator is in effect the moving party. If he succeeds he recovers costs, and if he fails he must pay costs. (2 R, S. 613, § 3, 16, 39.) I see no reason why judgment as in case of nonsuit should not be granted in this case as well as in other actions.

Motion granted.